Freedom Foundation

If teacher strikes are illegal, why do they happen?

For two weeks, widespread strikes and labor unrest instigated by the Washington Education Association (WEA), the labor union representing the state’s public school teachers, have disrupted educational services for many thousands of students and families.

The unrest in most districts has now been resolved, with the exception of the Battle Ground and Tumwater School Districts.

Most local media coverage has noted, correctly, that strikes by public employees are illegal in Washington. Less often explained is why public school teachers go on strike anyway.

State laws generally provide that public employees have no right to go on strike (see, for example RCW 41.56.120 and RCW 41.80.060). However, the state law governing teachers, Chapter 41.59 RCW, neither prohibits teachers from striking nor authorizes it.

Consequently, the WEA contends that strikes may actually be legal.

However, a formal opinion issued by the then-Attorney General Rob McKenna in 2006 noted that “state and local public employees do not have a legally protected right to strike. No such right existed at common law, and none has been granted by statute.” The current Attorney General, Bob Ferguson, has never contradicted his predecessor’s conclusion.

The problem is that state law specifies no penalties for engaging in an illegal strike. Without teeth, its an easy law for the WEA to ignore. Indeed, the state Public Employment Relations Commission (PERC) estimates that nearly 80 teacher strikes have occurred since 1976.

In order to end an illegal teacher strike, a school district must file a lawsuit against the union in the local superior court seeking an injunction ordering the teachers back to work. To get such an injunction, the district must show the strike is injuring its operations and the students and families it is supposed to serve.

Practically, this takes time; the longer a strike lasts, the easier it is to prove harm. Adding to the difficulty, many elected school board directors receive WEA political contributions and backing and are, therefore, reluctant to take decisive action to prevent union disruptions.

However, every time a school district has sought an injunction, courts have sided with the district and concluded the union strikes are illegal.

Even if a district seeks and obtains an injunction, the union may choose to simply ignore the court order to return to work, as is happening in Tumwater. In that case, the district must go back to court and persuade the judge to begin imposing penalties on teachers and/or the union, not for striking, but for violating the court order.

At this stage, its common for strikes to end. McKenna recently told Kiro 7 news that, “In every case I’m aware of where a judge has ruled a strike is illegal, the teachers have gone back to work.”

This appears to have been the case in the recent strike in the Longview School District, which ended shortly after a county judge ordered the teachers to return to the classroom.

Even if a court assesses fines against the union for ignoring an injunction, its rare for unions to pay any penalties.

At a taxpayer-funded panel celebrating teacher strikes hosted by the University of Washington in 2015, Pasco teacher union president explained what happened when his union went on strike earlier that year:

We went out for nine days. Very tough nine days. And we had a court injunction right off the bat, the very first day. We ended up getting fined $5,600, which was a lot of money. And this is the first time, I believe… Most times when you get these fines, the court gives it back to you when they’re done. Once you settle and you get everything done they say, ‘OK we’ll just forget it and go.’ This judge, for some reason, did not do that. So we ended up paying $5,600. We did not get it back. But I think it was a good $5,600 for us. What was nice was that it was a union bill, it wasn’t a individual bill. They did set it up where individuals were getting fined. The exec board, our bargaining team and me as president were all on that. But we kept doing it. We just said, ‘You know what? It’s worth doing.’ We did get some people in the back that were saying, ‘You know what? It’s a little hard. If I’m going to be on there and I’m going to get fined, I don’t know that I want to keep doing this.’ But we had people saying, ‘You know, its OK, let it go and we’ll see what happens.’ And normally what happens is they let it—they take them off. This judge was, for some reason, very different.

Unless the Washington Legislature changes the law, illegal union strikes will continue to disrupt the state’s ability to fulfill its “paramount duty” under Article IX of the state constitution “to make ample provision for the education of all children residing within its borders.”